*1 claimant, injury injured changed, principle reporting all known ‘and the as the injuries has not and is well stated in Barnes party, position initially best as- Co., v. Indian Terr. Ill. Oil 170 Okla. same, bring sess the must the claim he/she (Okla.1935).20 P.2d (when There Court injury for such it is caused cumula- held: trauma) two-year statutory tive within the claimant, “Where a at the time an award is period limitation or face assertion of the stat- injuries, inju- made for accidental knows of utory employer. time-bar The three- being ries other for which he than those judge panel correctly characterized Sneed’s compensated, judgment and exercises his (induced attempt injury to claim shoulder as to the seriousness of such other brought cumulative trauma and more than neglects give employer notice to his years experiencing two after last micro-trau- accident, year original within one after the episodes) matic as time barred under the per- such claimant should not thereafter be §of terms mitted to recover for such in- undisclosed Upon granted, certiorari earlier juries.” Id. at 635. THE COURT OF CIVIL APPEALS’ present Under the cause’s facts the claim- IS AND THE OPINION VACATED ant’s shoulder condition cannot said to be THREE-JUDGE PANEL’S DECISION IS As of Sneed’s last date of after manifested.21 exposure SUSTAINED. job-related cumulative trauma he V.C.J., HARGRAVE, HODGES, pain was as much aware of shoulder his as OPALA, WATT, JJ., KAUGER concur. pain he was the in his arms and wrists. alleging compensa- Claimant filed a Form 3 SUMMERS, C.J., part; concurs in injury body parts ble to the latter but for part. dissents personal reasons to himself he decided not to injured. schedule his shoulders as He at-
tempted bring the claim for a known injury
cumulative-trauma
to his shoulders
parts and elects when he files his Form 3 to 93,207. No. some, all, schedule but not of the affected areas, he cannot be later heard to claim the Supreme Court Oklahoma. injury as after manifested. The claimant’s Oct. pain possesses po silence about known delayed tential foregone treatment timely re-entry
which would facilitate a more pain
into the work force. Since is an indicia James, 22. Hambley Corp., 20. See also Finance Oil Co. v. 188 Okla. v. Foster Wheeler 1964 OK (Okla.1941). Tomberlin v. Gen. Am. Transportation Corp., 1956 OK applicable 21. For a discussion of law to after- 811, 813. i.e., condition, pathology, changed manifested bar, Benning and its relation to the 43 time Co., Publishing v. Pennwell 655-656. *2 wrongful
a claim of in a death — clearly it does. The Act and unam- biguously “Nothing states: in this act shall proceeding be used this state *3 and the use or nonuse seat belts shall not any be submitted into evidence civil suit in Oklahoma.”3
FACTS
7, 1997,
July
appellee,
3 On
Baptist
El
First
Reno [Church]
Church
arranged transportation
youth
to a summer
camp
youth group.
for its
The Church bor-
members,
rowed a van from one of its
allegedly, the van owner told the Church’s
youth
carry
director
the van would
sev-
However,
people.
occupied
en
it was
eight passengers at the time of the accident.
¶4 Although
teen-age girls
each of the
occupied a seat in the van at the time of the
accident,
there were
seat belts for five
—
girls in the back
van
of the
one of which
was stuffed
down
the seat and out of view.
occupied by
The van was
a church volunteer
driver,
Reeves,
pas-
Jackie
and a front seat
senger,
They
Jessica Baker.
wore seat
passengers
but
the other
did not. Marie
Whitten,
Reggie N.
Simone
Ful-
Gosnell
Comer,
Fuhr,
Emily
Heather
Wilds oc-
mer,
Oklahoma,
City,
Oklahoma
For Plain-
bench,
cupied the middle seat
and Jessica
tiffs/Appellants.
Lee,
Swaim,
Kelsy
Rebekah
Wint sat on
the back bench seat. Marie Comer was seat-
Dawson,
Bracklein,
Jack
E.
Steven
Okla-
directly
ed
although
behind the driver and
Oklahoma,
City,
Appellee.
homa
For
use,
was available for her
did
she
use it.
¶1 KAUGER, J.:
¶ 5 Marie Comer was killed when the van
¶ 2
dispositive
presented
issue
was struck
another vehicle en
route
§
whether 47 O.S.1991 12^1201 of the Okla-
camp.
January
parents,
On
her
Ron
Act,
Mandatory
homa
Comer,
Seat Belt Use
[the
(appellants/parents)
and Lisa
sued
precludes the introduction
alleging
Act]2
of evidence
negligent
Church4
that it was
support
use
nonuse of seat belts to
because the van
enough
did not have
parents
of the Oklahoma
4. The
also named the Church’s insurance
Act,
Mandatory
Seat
company
Belt Use
driver of the other vehicle as
Consequently,
in its
defendants
lawsuit.
"Nothing
in this act shall be
used
multiple
cause involved
claims for relief and
proceeding in this state and the use or nonuse
court,
multiple parties.
pursuant
The trial
to 12
of seat belts shall not be submitted into evi-
judgment
entered a final
dence in
civil suit in Oklahoma.”
expressly resolving all of the claims and issues
seq.
parents
2. Title 47
12-416 et
O.S.1991
which existed between the
and the
determining
just
Church and
that there was no
delay
filing
judgment.
Title 47 O.S.1991
reason for
the final
A.
for the number of back
carried,
passengers were not
and that the
Mandatory
Belt
Oklahoma
Seat
Use
wear the seat belts which were
impose
statutory duty
Act does not
appeared specially
provided.
Church
upon
vehi-
parents’ claim.
and moved to dismiss the
cle to
back seat
parents
argued that the
had failed to state a
belt,
nor has this Court
granted,
relief could be
claim for which
recognized
at
such
common
prohibited
that 47
12-4205
law.
presentation
evidence to
negligence.
allegations of
8 The
concede that
the Okla-
2012(B),6
to 12 O.S.1991
Pursuant
Act,
Mandatory
homa
Belt
Seat
Use
[the
the trial court treated the motion
dismiss Act],
seq., requires
et
summary judgment,
and on
as motion
*4
occupants
that
the
of the front seat
18,1999,
judgment
in favor
May
entered
of passenger vehicles wear seat
and that
belts
parents.
against
the
the
Church
require
passen-
the Act does not
back seat
16, 1999,
parents appealed
filed
on June
Nevertheless,
gers
buckle-up.8
they argue
to
a motion to retain the cause
this Court.
they
that
damages
should recover
for the
September
we retained the
On
wrongful
daughter
death of their
because of
impression ques-
cause to address the first
duty.
the breach of the Church’s common law
application
regarding
tion
the
of 47 O.S.1991
They
voluntarily
assert that after the Church
negligence.
a
for
12^4207 to claim
parental/supervisory
assumed a
role it was
7 PURSUANT TO
charged
duty
provide
with the
to
a safe
OF THE
NON-
EVIDENCE
USE OR
travel;
duty
environment
which to
the
BE
OF
BELTS MAY NOT
USE
SEAT
way
to overload the van in such a
as to
A
INTRODUCED
TO SUPPORT
preclude
opportunity
every girl
for
to use
CAUSE OF ACTION.
belt;9
duty
a seat
and the
to instruct or
1, supra.
apply
operator
This
5. Title 47 O.S.1991
see note
C.
of a motor vehicle who is a route carrier of the
section shall not
to
U.S. Postal Service.
D. No law enforcement officer shall make
routine
2012(B).
stops
purpose
of motorists for the
1, supra.
7. Title 47
enforcing this act.”
This statute was amended in
version,
the current
8. Title O.S.1991 12-417
replaces
§12-417
47 O.S.
pro-
E.
subsection D and adds
subsection
It
Every operator
"A.
and front seat
pertinent part:
vides in
operated
car
in this state shall
Department
Safety
“D. The
of Public
shall not
adjusted
safety
wear a
and fastened
points
or assess
for violations of this
record
system, required
to be installed in the
any
by
record
section on
license holder’s traffic
pursuant to
motor vehicle when manufactured
Department.
maintained
Safety
Federal Motor Vehicle
Standard 208.
violating
pro-
E. Fine and court costs for
section, ‘passenger
purposes
For the
of this
Twenty
visions of this section shall not exceed
car’
‘vehicle’ as defined in Section
shall mean
($20.00).”
Dollars
title,
‘passenger
except
1102 of this
that
car’
parents’
the Church’s al
9. The
claim relates to
trucks, truck-tractors,
not include
recre-
shall
lowing
girls to ride in the back of the van
the six
vehicles, motorcycles,
bicy-
ational
motorized
—
girls
there were
seat belts for five
when
primarily
cles
vehicles used
for farm use
which was stuffed down in the seat and
one of
out
pursuant
of Sec-
and licensed
parents' allegations
view. The
toward the
title.
of this
provide
girl
to its failure to
each
Church relate
apply
operator
section shall not
to an
B.This
by plac
opportunity
with an
to wear a seat belt
car in which the
.
failing
require
ing
them to
them in the van or
passenger possesses
a written veri-
appears use available seat belts.
there
physician
this state
fication from a
licensed in
girl
adequate
van
each
to at
was
room in the
for
belt for
he is unable to wear
occupy
Accordingly,
is not a
least
a seat.
Provided, the issuance of
medical reasons.
case in which the vehicle was so overcrowded
faith,
by physician,
good
verification
such
girls
for all of the
to fit in
that there wasn’t room
it or that
to,
physician
give
shall not
rise
nor shall such
they
were forced to sit in some unusual
incur,
liability
thereby
Annot.,
whatsoever in dam-
position.
generally,
Overcrowding
See
otherwise,
any person injured by
ages or
Riding
Position
Motor Vehicle or
in Unusual
Injury
Affecting Liability
of such failure to wear
reason
system.
or Dam
Thereon as
age.
tions. who dictions have been confronted with ¶ party seeking 10 A to establish issue, majority the the of cases hold prove preponderance by must of the failure to use seat belts is not a by duty evidence the existence of a the owed contributory negli- defense to establish plaintiff ordinary the defendant to to use gence damages or reduce the to amount of care, duty, injury a breach of that and an injured party. proximately by caused the defendant’s unanimity In view of the lack of on a duty.11 parties agree of breach that we proper system, public seat belt the lack of recognized have never that the common law acceptance, and in the absence of com- adult, parent, group, of care of a statutory duty, mon law or we find that organization toward a minor includes the evidence of the failure to use seat belts is duty make to seat belts available in all seat not admissible to establish a defense of ing positions or to instruct or the use contributory negligence or to be consid- However, they urge of seat belts. that we in mitigation damages. ered of For the should do so now. present time we await the direction of the legislature.” ¶ 11 The to use a seat belt Although and holding evidence of its use or nonuse is not our 1976 in Fields related entirely jurisprudence. establishing contributory neg- new In to to Oklahoma defense of America, Inc., ligence mitigation Volkswagen Fields v. consideration of of dam- ages, recognized we also legisla- that the OK 555 P.2d 84 A.L.R.3d relating tion to seat belts was a statute which Court addressed seat belt evidence admissi pos1^1966 made it unlawful to sell model bility it establishing as related to a defense of vehicle without seat right belts for the front contributory negligence or for and left seats.12 per Fields involved an action for ¶ sonal sustained driver when his quarter 13 After century almost a steering driving wheel locked while he longer infancy, was use of seat belts is in alleged steering generally accepted the car. The driver is that seat belt 12-420, 12. Title 47 O.S.1971 12-413. The ver current statute, of this sion ma re unchanged ins Inc., Phelps Management, v. Hotel 1996 OK 891; Superior any person 925 P.2d Grover v. Weld- “It shall unlawful for to sell or ¶14, 5, ing, offer for sale at retail or trade or transfer from Wofford 77, 8,¶ Hosp., any passenger v. Eastern State or to Oklahoma residents vehi- cle which is manufactured or assembled com- protection required provide In are usage fatalities. reduces traffic four, position, parents direct age their our atten- weighing children under the contained Oklahoma less, statistics pounds by properly sixty using a Facts, Edition, report issued Crash system. child restraint Children Safety Office. Highway Oklahoma required four or five are to be fatality victims finds that in 87.2% protected either a child re- using seat belts or should have been child system Any person straint or a seat belt. restraints; fatality victims were not 73.6 % of violating imposed convicted of the statute restraints; using child seat belts or fine of and a maximum $15.00 $10.00 using fatality 22.2% victims seat belts Incongruously, these re- court costs.15 restraints; were cases in which or child 4.2% apply to the “driver of a quirements do not unknown; and 12.8% of usage was if all vehicle of the seat belts vehicle fatality were cases which seat accidents are in use.”16 usage applicable. was not In Legislature enacted the responded first Act, Mandatory Seat Belt Use Oklahoma enactment of 47 Fields with its Operators seq. 12-416 et 11-1112,13 Supp.1983 regulating front seat are ears systems. Under 11-1112,14 they unless version of drivers wear seat current models, 4. A if all of the seat mencing unless such driver of a vehicle with the use; equipped with belts or in the vehicle are in vehicle is transportation shoulder harness combinations which are of children who for persons in placed the use of the left front stalled for to be medical reasons are unable right thereof.” front seats such devices. hereby D. A law officer is autho- enforcement origi- 13. Title 47 O.S. as appears stop rized to if it a vehicle enacted, essentially nally the same the cur- driver has violated version, Supp.1995 § rent see 47 O.S. give warning of this and to an oral section *6 infra, 1) exceptions: it did not note with three warning shall advise the driv- said driver. The any requirements regarding weight make of a possible danger resulting er of the to children child; 2) passenger of a it allowed the use child passen- or use a child from failure install system properly a secured belt restraint or seat ger system in the restraint or seat belts motor vehicle; 3) fines in the rear seat of the vehicle. imposed for a violation of the statute. provisions E. A of this section violation of any not evidence in shall be admissible as Supp.1995 provides: § Title 11-1112 14. 47 O.S. damages. proceeding action or Every transporting "A. when a child driver any brought by In or on behalf of an F. action (60) (4) years age weighing sixty under of four injuries wrongful personal or death infant for operated pounds a vehicle or less in motor collision, sustained the fail- in a motor streets, highways roadways, or of this state properly infant person ure of have the protection by provide of child shall for the said provisions restrained in accordance with sys- passenger using restraint a child aggravation not used in or this section shall be purposes of this section Section tem. For title, passenger this ‘child restraint 11-1113 of Any violating person G. convicted of subsec- system’ passenger or child means an infant punished by be A or B this section shall system that meets the federal stan- restraint ($10.00) pay and shall a a fine Ten Dollars systems by dards restraint set for crash-tested ($15.00) Fifteen Dollars court maximum of Department Transporta- the United States suspended costs This fine shall be thereof. tion. upon proof the case first offense (5) (4) five B. four Children by acquisition purchase loan a child protected shall child be Provided, system. the De- restraint system belt. or seat Safety partment shall not assess of Public C. of this section shall not driving points record of licensed or apply to: person of a violation of unlicensed convicted transporting a 1. A driver child nonresident this section.” state; in this bus, taxicab, moped, 2. a school The driver of 11-1112(G), § see Title 47 15. motorcycle, or other motor vehicle not re- 14, supra. note safely quired equipped pursu- to be laws; and ant to or federal state 11-1112(C)(4), Supp.1995 § see emergency 47 O.S. ambulance or Title driver of an 14, vehicle; supra. note requires excused medical The fine and right reasons.17 seat belts for the front and left violating § costs for seats. Title O.S.1991 12-41720 not court are limit- does section impose statutory duty upon a Inexplicably, ed to Act does $20.00.18 not minor, require vehicle to that back seat wear seat to use a seat belt. Conse- distinguish ages nor does it between quently, parents urge us to other look at any particular require- or make jurisdictions adopted which have a common for minors. ments law to ensure the use of belts.21 However, statutory under this adopt We need not consider whether to such scheme, duty pressed by parents duty, independent statutory of the current scheme, § not exist. does Title 47 12-41319 because the strictures of 47 O.S.1991 8, 12-417, supra. Title 47 inoper note see dent because seat belt had been rendered able and was unavailable for use was admissible 12-417(E), Supp.1997 § 18. Title 47 O.S. against owner vehicle. 8, decision, supra. Although not relevant to our Legislature statutory duty created for drivers and we note that 47 O.S.1991 12-418 occupants all ever, of vehicles to use How seat belts. "Any person violating convicted of Section 2 of occupant if a driver or chooses to use a punished by belt, this act shall be a fine of Ten choice is not admissible as evi ($10.00) pay Dollars and shall court costs of negligence.]; Speaker, dence of Rider v. Provided, ($15.00). Fifteen Dollars 999, the De- Misc.2d 692 N.Y.S.2d partment Safety of Public shall assess (N.Y.Sup.1999) [Babysitter, passen as custodial points driving record of licensed or ger failed to who buckle belt or infant person unlicensed convicted of violation of seat, could be held liable for dam this act.” ages resulting from suffered infant 12-417, In corporating amended negligent to her entrusted care on the basis of language but limit- Marchese, supervision.]; Costello Hines However, ing fines and court $20.00. costs to (N.Y.App.Div. A.D.2d N.Y.S.2d repealed. 12-418 has not been grand [Grandfather's failure to fasten operating child's seat before vehicle could 19. Title 47 O.S.1991 note see su- act.]; Briner, negligent Twohig found to be pra. Cal.App.3d Cal.Rptr. (1985) regarding [Triable issue of fact wheth 20. Title 47 O.S.1991 note owner/operator er breached to exercise due operation care in the safe and maintenance of limiting 21. Most states have some form of statute passenger by removing vehicle owed to the seat seat belt evidence. The belts.]. rely jurisdictions on several cases from other liability. Other courts have refused argument Gaertner of their that we should deter- Holcka, Wis.2d 580 N.W.2d duly mine that the Church owed a law common *7 (1998) may for daughter. [Claim contribution be sus- toward their not These cases are either involving opera- tained cases facts, in a motor distinguishable contrary on their to America, negligence failing tor's in to holding Volkswagen Fields v. restrain in our of belt.]; 106, 48, age and between 4 15 of with a seat 555 84 P.2d A.L.R.3d Holland, 1199, Mut. State Farm Auto Ins. Co. v. 324 prior or were determined the enactment to 466, 100, (1989) 380 N.C. S.E.2d belt 106 of of seat evidence [Failure statutes. daughter mother to restrain infant in child re- jurisdic We note that some other courts in system tions, straint in violation of was not statute relying particular particu on state laws or negligence proximate actionable and circumstances, was not lar factual duty either a have found wrongful daughter.]; cause of death of Patterson to ensure that a minor wear seat belt or Horton, 531, 1125, Wash.App. v. 84 question negligence that a fact exists when a (1997) [Automobile 1129 use, to se- driver’s provided failure minor fails to or is not See, cure was not Robison, children actionable for e.g., with a seat belt. Barnes v. 873, (D.Kan.1989) which F.Supp. Statutes under 712 877 [Under Kan law, pro- of 16 to be restrained also contain sas evidence of father’s failure to secure 2 excluding year-old visions evidence safety child of seat belt law viola- in child restraint was admis Keller, prove negligence.]; tions civil duty to protect sible. Common law Baker v. to a child from 947, 330, injury preceded (N.Y.App. 241 661 statutory A.D.2d N.Y.S.2d with 331 coexists 1997) duty.]; 1153, Dellapenta alleg- Dellapenta, [Statute Div. 4 barred v. from 838 (Wyo.1992) inapplicable ing negligent allowing 1159 driver had been [Seat belt statute child to injury belt.]; Chaney prior safety where ride in seat occurred to enactment. Par back without v. 260, 837, duty Young, N.C.App. have a ents to belts buckle the seat of their 122 468 839 S.E.2d Gerke, (1996) passengers.]; improper minor v. 258 [Mother’s Mont. belt seat use/misuse Califato 68, 121, (1993) securing 124 [Evidence that minor child was to tantamount non- Nelson, inadmissible.]; minor did not have Goldberg at time of acci- use and 202 v.
1013
contributory
belt
parents’
use of a “seat
defense”
dispositive of the
§ 12-42022 are
damages,
and not
are not
against
the Church. We
claim
2)
actions;24
preclude
duty where
to
evidence in all civil
to
a common law
clined
craft
inapplicable
impose
statute is
to their claim be-
specifically failed to
Legislature has
requires
cause
Act
seat belts
statutory
Fields'
to
one.
decision
3)
passengers;
front
Legislature was
drivers and
await
the direction
specifically prevent the
any decision
it does not
admissibil-
indicating that
to
tantamount
to
a seat belt to a standard ity of the use or nonuse of seat
link the use Legisla-
passengers.
contends that
be left to the
Church
care should
reasonable
essentially
precludes
parents’
statute
submission
ture.- The Fields
Court
invited
allegations.
subject
support their
seat belts-—and
of evidence to
legislation on the
again.
we do so
of legisla
18
determination
interpretation,25
statutory
tive intent controls
B.
it
from
and must be ascertained
the whole
statutory
if
Even
the Church
under
object
general purpose
act
on its
based
duty,
law
47 O.S.1991
12-
or common
apply the
unnecessary
ive.26 It is
to
rules
precludes the introduction
of evi-
clearly
if the
will is
legislative
construction
against
support a claim
it.
dence to
expressed.27
presumed
Legis
It is
1)
expressed
intent
in a
parents argue
the stat-
lature has
statute
17 The
that:
expressed.28
intended
it
apply
prevent
to
to
and that
what
ute was
intended
note,
A.D.2d,
684,
390,
(N.Y.App.
before
and we need
address it. We
608 N.Y.S.2d
us
not
however,
1994)
type
liability
applies
whether
toward
that
statute
[No
Div.
attributable
product liability
to
claims as well as to breach of
infant son while
father for
sustained
which,
litigated
juris
cargo
has
riding
although
contract actions
been
other
van
the back
See,
e.g.,
By
Through
Gardner
properly equipped
dictions.
with
front
729,
(10th
rear.];
Chrysler Corp.,
F.3d
Gardner v.
lacked
or seats in the
Stewart v.
seat belts
statute,
Cir.1996)
Taylor,
Kansas
[Under
N.Y.S.2d 627
evidence
193 A.D.2d
1993)
equipped
passen
(N.Y.App.Div.
requiring
belt
seat was
ger
with seat
which
[Statute
front
determining
impose
was
did not use
admissible
to use
belt did not
design
assembly was de
duty
year-
whether overall
fective.];
of seat
on vehicle
to ensure that 16
belt.];
Glyn-
Bridgestone/Firestone, Inc.
v.
wearing
was
old
Swelbar
Jones,
Lahti,
SUMMERS, C.J., V.C.J., KAUGER, OPALA, JJ.,
LAVENDER,
concur.
WATT, J., concurring specially.
HODGES, J., participating. not
WATT, J., concurring specially: pronouncement by today’s
I concur applied
majority law as only because the Act”, compel facts me “The
these to. seq., 12-416 et as written does occupants mandate seatbelt use all is therefore a misnomer. Seat infancy. longer
belt use is no Seat save lives. because
Today restrain the Comers we
Legislature has restrained us. roadways Comers” on our “Marie restrained, not
today that need to be surviv- courts, and it is for that
ing families nor separately.
reason that I write majority’s applaud
I
renewed call to
wrong.
right
Slowinski,
See,
In
Initiative Petition No.
450 N.W.2d
re
Id.
Lind v.
2,¶
seating
(Minn.Ct.App.1990)
generally
[Evidence con-
[Courts
P.2d 810
do
injuries prop-
position
to and caused
contributed
expediency of
with wisdom or
cern themselves
pursuant
jury
erly excluded from
consideration
law,
legality.];
with its
Blackwell
but
admissibility
of use or fail-
to statute
Co.,
Parker,
OK
Zinc
Inc.
belt.].
ure to use seat
themselves with
do not concern
[Courts
merits,
advisability
legislative
wisdom or
Employee
City Hugo v. State ex rel Public
meaning
va-
but
with their
enactment
134, ¶ 23,
Bd.,
OK
Relations
lidity.].
Leavitt,
Group,
Impact
Toxic Waste
20, ¶ 10,